74 So. 162 | La. | 1917
Lead Opinion
We make the following extracts from ,the brief filed- in behalf of the plaintiffs and appellants:
“The issue in this case is briefly stated. Plaintiffs being the holders of a note against the defendant Charles G. Larabee, secured by mortgage, obtained judgment against him, and in due course caused the property mortgaged to be seized and advertised for sale.
“Defendant thereupon set .up a homestead claim to the property, or in the event of its selling for more than $2,000, prayed to be awarded the amount to the exclusion of the seizing creditors.”
"The property having brought more than $2,-000, and his right to the homestead having been recognized by the lower court, this amount has been ordered paid to him by preference out of the proceeds of the sale, and plaintiffs have appealed.”
“Plaintiffs do not deny that defendant was a man of family, living on the property in question, but they contend that the homestead right provided by law for an honest debtor in destitute circumstances, and not for one who illegally and fraudulently disposes of property covered by the mortgage sought to be enforced.”
The only special reason urged in plaintiff’s answer to the petition of intervention why the homestead claim of the interveners should not be recognized was:
“That the said exemption is one provided for the destitute, and that said interveners are in possession of means in excess of said exemption.”
It is not claimed that the evidence shows that the wife of the defendant owned and was in the actual enjoyment of property or means to the amount of $2,000. Const, art. 244.
In White v. Givens, 29 La. 571, it was held that the fact that the debtor had other property than his homestead or has fraud
The court in that case said, inter alia:
“The law exempts the homestead; and whether the defendant in exemption has other property or * * * has made fraudulent or fictitious sales of other property, it is not material for us to inquire, because the exemption is specifically of the homestead, and that cannot be sold under execution whether the defendant has other property or not.”
“If White has disposed of his property fraudulently or by simulated titles that property may be pursued by his judgment creditors; but no act of White, however fraudulent, touching other property can deprive him and his family of the exemption of the homestead.”
The ease of White v. Givens was followed in Tolbert v. Freeman, 130 La. 47, 57 South. 580.
Hence the disposition of other property not subject to this homestead claim cannot affect the situation.
Under said article, the benefit of the exemption is extended to the debtor, as “a head of a family” or a person having some other person or persons dependent on him or her for support; and the benefit of the exemption may be claimed by the surviving spouse, or minor child or children of a deceased beneficiary.
Const, art. 246 mates the written consent of the wife necessary to any waiver of the homestead by the husband.
Judgment affirmed.
Dissenting Opinion
distinguishes this case from those where the home itself is being claimed, and not money, and dissents.